Murray v. Schillace

• Decision Date: 24 May 1995
• Docket Number: No. 93-291-A,93-291-A
• Citation: 658 A.2d 512
• Parties: Francis H. MURRAY v. Marc SCHILLACE et al. 1 ppeal.
• Court: Rhode Island Supreme Court

Page 512

658 A.2d 512

Francis H. MURRAY v. Marc SCHILLACE et al. ¹

No. 93-291-Appeal.

Supreme Court of Rhode Island.

May 24, 1995.

Patrick T. Conley, East Providence, for plaintiff.

Stacy B. Ferrara, Law Office of Alfred G. Thibodeau, Providence, for defendant.

OPINION

SHEA, Justice.

This matter is before the Supreme Court on appeal by the plaintiff, Francis H. Murray (Murray), from a Superior Court order granting a motion to vacate a final decree foreclosing rights of redemption that was filed by Cadle Company (Cadle), assignee of a mortgage on property originally owned by the defendant Marc Schillace (Schillace) and mortgagee Advanced Financial Services of East Providence, Rhode Island (AFS). For the reasons set forth below, we reverse the granting of the motion to vacate.

On May 2, 1991, Murray purchased a piece of property at 981 Chalkstone Avenue in the city of Providence at a tax sale by tendering to the city the amount of $2,512.35. This amount represented the back taxes due on the subject property. Schillace was the former owner of the property, and AFS was the mortgagee at the time of the tax sale. The city collector's deed to plaintiff was executed on May 24, 1991, and recorded on June 6, 1991. The deed indicated that the city collector provided notice to fee holder Schillace and mortgagee AFS, the predecessor in interest to defendant United Bank and Trust (United Bank), which in turn was the mortgagee when the petition to foreclose the right of redemption was filed.

In December of 1991 AFS assigned the mortgage to United Bank, which later assigned the mortgage to Cadle. On June 4, 1992, plaintiff filed a petition to foreclose tax lien with the Superior Court, seeking to extinguish both defendants interests in the property. Service was made on defendants Schillace and United Bank by certified mail. Constructive notice was also made on defendants and all other interested parties through publication in the Providence Journal. Neither Schillace or United Bank filed an answer to plaintiff's complaint, and Murray obtained an entry of default and a final decree forever foreclosing all rights of redemption to the subject property on October 6, 1992.

On April 12, 1993, Cadle, the subsequent holder of the mortgage on the property, filed a motion to vacate the decree foreclosing rights of redemption, pursuant to Rule 60(b) of the Superior Court Rules of Civil Procedure. Cadle claimed lack of proper notice, alleging both the city and Murray erred in spelling the surname of Marc Schillace. The first "c" in Schillace was omitted on the collector's deed, the petition to foreclose, and the notice to both defendants, Schillace and United Bank.

On April 21, 1993, the trial justice entered an order vacating the final decree entered by the trial court on October 6, 1992, foreclosing all rights of redemption in regard to the property. The trial justice determined that the misspelling of defendant's last name was sufficient grounds to vacate the previous order of the court. On May 6, 1993, plaintiff appealed the order granting Cadle's motion to vacate the final decree.

The sole issue before us is whether the trial justice erred in vacating the final decree of October 6, 1992, foreclosing all rights of redemption to the holder of the mortgage and other interested parties. The plaintiff contends that Cadle's motion to vacate under Rule 60(b) was improper and not permitted under Rule 81(a)(2) of the Superior Court Rules of Civil Procedure, which states that the rules of civil procedure do not apply to petitions for foreclosure of redemption of interests in land sold for nonpayment of taxes. In addition, plaintiff asserts that the deletion of the letter "c" from the interior of one defendant's surname is neither substantial nor misleading within the meaning of G.L.1956 (1988 Reenactment) § 44-9-35 and thus does not invalidate plaintiff's tax title.

Cadle contends that the Superior Court properly granted its motion to vacate the default judgment on the basis of equitable principles and not pursuant to Rule 60(b). The defendant argues that since the court did not rely on the rules of civil procedure in granting the motion to vacate, it is not necessary for the court to decide whether the Rhode Island Rules of Civil Procedure apply to tax-sale cases. Cadle also asserts that the misspelling of the mortgagor Schillace's name as "Shillace" on the tax deed, the petition to foreclose right of redemption, and the citation constitutes a substantial and misleading error. It further alleges that such an error constituted improper notice to the mortgage holder United Bank pursuant to § 44-9-35. Cadle believes this error warrants the upholding of the trial justice's granting of the motion to vacate the default judgment.

We are inclined to agree with plaintiff's position. In Phoenix Construction Co. v. Hanson, 491 A.2d 330, 332 (R.I.1985), this court...